Taylor v. State

• Decision Date: 14 March 2002
• Docket Number: No. 13-99-414-CR.,13-99-414-CR.
• Citation: 74 S.W.3d 457
• Parties: Jeffery Edward TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

74 S.W.3d 457

Jeffery Edward TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 13-99-414-CR.

Court of Appeals of Texas, Corpus Christi.

March 14, 2002.

Rehearing Overruled May 9, 2002.

Charles Freeman, Houston, for appellant.

Bridget Holloway, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty., Houston, for state.

Before Justices YAÑEZ, RODRIGUEZ, and BAIRD.¹

OPINION

Opinion by Justice CHARLES F. BAIRD (Assigned).

Appellant was charged by indictment with the offense of aggravated robbery. The indictment alleged a prior felony conviction for the purpose of enhancing the range of punishment. The jury convicted appellant of the charged offense. Appellant pled true to the enhancement allegation. The jury assessed punishment at fifty years confinement in the Texas Department of Criminal Justice—Institutional Division, and a fine of $10,000. Appellant raises eleven points of error. We will address only points of error one, two and three, and reverse and remand.

I. Jeopardy.

A. Procedural History.

Appellant was initially charged in a two paragraph indictment with the offenses of capital murder and aggravated robbery. Prior to voir dire, the following exchange occurred between the prosecutor and the trial court:

THE STATE: Let me say this for the record, I am abandoning the second paragraph of aggravated. It's probably going to come up as a lesser.

THE JUDGE: Okay.

Following voir dire, the State read only the capital murder paragraph of the indictment, and appellant pled not guilty. At the conclusion of the evidentiary stage of the guilt phase of the trial, the trial judge charged the jury on the offense of capital murder and the lesser included offense of aggravated robbery. The aggravated robbery application paragraph authorized the jury to convict upon finding appellant, either as a principal or as a party, caused serious bodily injury to the complainant by stabbing him. The jury convicted appellant of the lesser offense, and subsequently assessed punishment at confinement for life. The trial court's judgment was later reversed. Taylor v. State, 945 S.W.2d 295 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd).

Upon remand, a grand jury returned the instant indictment which alleged two theories of aggravated robbery. Tex.Pen.Code Ann. § 29.03(a)(1) & (2) (Vernon 1994). Specifically, the indictment alleged the offense was aggravated by using and exhibiting a deadly weapon, and by causing seriously bodily injury by cutting and stabbing the complainant. The trial judge submitted both theories to the jury and the jury returned a general verdict convicting appellant of the charged offense.

B. Arguments and Analysis.

Appellant raises two arguments, both of which contend the instant prosecution was jeopardy barred following the events of the first trial.²

1. Abandonment.

To preserve a portion of a charging instrument for a subsequent trial, the State must, before jeopardy attaches, take some affirmative action, on the record, to dismiss, waive or abandon that portion of the charging instrument, and the State must obtain permission from the trial judge to dismiss, waive or abandon that portion of the charging instrument. Ex parte Preston, 833 S.W.2d 515, 518 (Tex. Crim.App.1992) (opinion on original submission).³ In a jury trial, jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Preston, 833 S.W.2d at 517. As noted above, prior to voir dire, the State announced it was abandoning the aggravated robbery allegation. The judge responded, "okay." The State's announcement was an affirmative act, on the record, and the judge's response was her permission for the abandonment.⁴ Therefore, we hold the instant prosecution of aggravated robbery was not jeopardy barred.

2. Alleging a Different Theory of Aggravated Robbery.

Appellant next argues the grand jury was not authorized to return an indictment which alleged a theory of aggravated robbery in addition to the one submitted to the jury at the first trial. The State cites Barnes v. State, 644 S.W.2d 1 (Tex.Crim.App.1983), for the proposition that the theories alleged in the instant indictment are permissible. In Barnes, the defendant was charged with the offense of murder, but convicted of the lesser offense of voluntary manslaughter. The conviction was reversed for charge error, but the issue remained whether the defendant could be retried for a form of voluntary manslaughter different from that permitted by the indictment. The Barnes Court held: "Although the appellant may not be retried for committing any offense greater than voluntary manslaughter, ... this Court's decision will not preclude the State from reindicting the appellant for committing the offense of voluntary manslaughter, and alleging both methods of committing the offense, ... should it desire to do so." Barnes, 644 S.W.2d at 2-3 (internal citations omitted); see also Durrough v. State, 620 S.W.2d 134, 138 (Tex. Crim.App.1981) (following reversal defendant may be retried on original indictment or new indictment charging the same offense). We are persuaded that the instant case is controlled by Barnes. Therefore, we hold the instant prosecution for aggravated robbery by using and exhibiting a deadly weapon was not jeopardy barred.

The first point of error is overruled.

II. Misstatement of Law.

The second and third points of error contend the trial judge misstated the law during voir dire.

A. Procedural Summary.

During her remarks to the venire, the trial judge covered several general principles of law. When addressing the issue of punishment, she correctly stated the range for the offense of aggravated robbery was five to ninety-nine years or life, and a possible fine not to exceed $10,000. Tex. Pen.Code Ann. § 12.32 (Vernon 1994). The trial judge then gave a hypothetical example of a convenience store clerk who was robbed by a seventeen-year-old defendant with an unloaded gun to obtain funds for his infant child who was born with a health defect and was ill. In the hypothetical, the defendant gave the robbery proceeds to the medical personnel caring for the child, voluntarily surrendered himself to the police, and confessed to the crime. At the hypothetical trial, the robbery victim testified that he did not want to see the defendant go to prison for committing the crime. At this stage of the hypothetical, appellant objected, stating a victim may not make a recommendation as to punishment. The trial judge overruled the objection and continued with the hypothetical by stating the defendant had never been in trouble, and concluded by stating "that may be a situation where a jury would want to consider something on the lower end of the punishment scale."

Prior to the parties exercising their peremptory strikes, appellant moved to quash the venire on the basis that the trial judge had misstated the law in the hypothetical by stating the victim could make a recommendation as to punishment. In making this motion, appellant cited several cases to the trial judge. The trial judge overruled the motion. Appellant then moved to challenge for cause every member of the venire because "they've been polluted with a misconception of the law on victim punishment recommendations." The trial judge denied that motion. Appellant then requested additional peremptory challenges; that request was also denied. After exhausting his peremptory strikes, appellant identified several objectionable jurors, and the trial judge again denied the request for additional peremptory strikes. Finally, when the jury was impaneled, the trial judge asked if there was an objection to the jury and appellant responded, "[o]ther than the previous objections I've made, I have no additional." To which the trial judge replied: "Got you. Berated (sic) on objections. Got you. Thank you."⁵ The jury ultimately convicted appellant of the charged offense.

At the punishment phase of trial, appellant pled true to the enhancement allegation. After the State rested its case in chief at the punishment phase of trial, defense counsel approached the bench and stated he would not be offering any evidence on the issue of punishment because of the trial judge's hypothetical that the complainant could make a recommendation as to punishment.⁶ Appellant then made an offer of proof as to what punishment evidence he would have offered but for the hypothetical employed by the trial judge during voir dire.⁷ The jury found the enhancement allegation true and assessed punishment at confinement for fifty years and a fine of $10,000.

B. The Law.

By lodging a timely objection and obtaining a ruling thereon, appellant has preserved this point of error for our review. Tex.R.App.P. 33.1. The issue, therefore, is whether the trial judge misstated the law.

The leading case on this subject is Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex. Crim.App.1989), where the capital defendant called an expert witness and attempted to elicit testimony as to which punishment, a life sentence or the death penalty, would be most appropriate. The State's objection was sustained by the trial judge. The Court of Criminal Appeals upheld that ruling, holding such testimony would escalate into a "battle of the experts" and "the subject matter of what punishment should be assessed was not one upon which the aid of his opinion would have been of assistance to the trier of fact. Rather, such testimony would only tend to confuse the jury." Id. at 290.⁸

The courts of appeals have adhered to the holding of Sattiewhite, and have even extended it to non-expert witnesses. Wright v. State, 962 S.W.2d 661, 663 (Tex. App.—Fort Worth 1998, no pet.) (trial judge correctly sustained State's objection to the victim's testimony on the type of punishment defendant should receive); Fuller v. State, 819 S.W.2d 254, 258 (Tex. App.—Austin 1991, pet. ref'd) (witness may not recommend a particular punishment to the...